2020001819•EEOC Appeal 2020001819
Gesamter Gesetzestext
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Logistics Agency (DLA)), Agency. Appeal No. 2020001819 Agency No. DLAN-19-0016 DECISION On December 17, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 18, 2019, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Business Process Analyst, GS-0301-13, at DLA Distribution Headquarters in New Cumberland, Pennsylvania. On November 23, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discriminatory harassment based on race/sex (African- American male) and reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website.
2020001819 2 1. On or about July 18, 2018, during a presentation at a meeting in Fort Belvoir, Complainant distributed handouts as requested by his supervisor, who was the presenter. When he got to the table of the Chief, Inventory Management, the Chief angrily, loudly and rapidly asked him, “what is this?!, “who gave you authority to do this?!”, “do you have enough copies for everyone?!”, “did you email me a copy?!”, etc. As he responded, the Chief made weird, loud, derisive, mocking laughter. 2. On August 23, 2018, at a large meeting in New Cumberland, Pennsylvania, after the Chief tossed out a question to the attendees, Complainant gave an informed response, which included an example about trash in the warehouse along with an email to the Chief’s subordinate with source material. The Chief replied that she needed a real answer, not “trash”, and after the subordinate seemingly forwarded his email to the Chief she slammed her laptop closed and said something to the effect that, “this is exactly what I said I don’t want.” The Agency dismissed the complaint for failure to state a claim because Complainant’s employment was not harmed by the Chief’s alleged rude behavior. The instant appeal followed. On appeal, though his attorney, Complainant argues that he stated a claim of harassment/hostile work environment on all his bases of discrimination and separately on the basis of reprisal because the Chief’s behavior would deter a reasonable employee from engaging in protected EEO activity. ANALYSIS AND FINDINGS In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, Section B (Aug. 25, 2015) (available at eeoc.gov).
2020001819 3 Complainant does not contend that the Chief, who was located in a different state, perpetrated other acts of harassment against him. We find issues 1 and 2, without more, even if proven true, neither rise to the level of actionable harassment, nor would they reasonably likely deter protected EEO activity. The FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.
2020001819 4 If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 27, 2020 Date
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